Citation Nr: 21001903 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-41 760 DATE: January 12, 2021 ORDER Prior to October 17, 2018, a compensable rating for hearing loss is denied. After October 17, 2018, a 10 percent rating, but no higher, for hearing loss is granted, subject to the regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to October 17, 2018, the Veteran’s hearing loss was manifested by no worse than Level III impairment bilaterally. 2. After October 17, 2018, the Veteran’s hearing loss was manifested by no worse than Level III impairment for the right ear and Level IV for the left ear. CONCLUSIONS OF LAW 1. Prior to October 17, 2018, the criteria for a compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, DC 6100. 2. After October 17, 2018, the criteria for a 10 percent rating, but no higher, for hearing loss have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.21, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1975 to November 1979, including over three years of foreign or sea service. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a February 2020 videoconference hearing before the undersigned Veterans Law Judge. A transcript of this proceeding has been associated with the record. Initial Rating The Veteran is currently pursuing a compensable initial rating for his service-connected hearing loss. See 38 C.F.R. §§ 4.85, DC 6100. Disability ratings are determined by the applications of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. With hearing loss disabilities, evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. In 38 C.F.R. § 4.85, the vertical lines of Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns of Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage disability evaluation is then found from Table VII of 38 C.F.R. § 4.85, by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. Further, the provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 dB or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Further, when the puretone threshold is 30 decibels or less at 1,000 Hz and 70 dB or more at 2,000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral. Id. This Veteran underwent multiple audiological examinations during the period on appeal. First, a June 2014 VA treatment record contains the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 15 80 80 LEFT 20 15 15 75 85 As calculated by the Board, puretone threshold averages were 48.75 percent for the right ear and 47.5 for the left ear. 38 C.F.R. § 4.85(d). Maryland CNC speech recognition scores were not provided at that time. These results are properly rated under Table VIA, such that the hearing impairment levels correspond to Level III for the right ear and Level II for the left ear. Intersecting Levels III and II under Table VII result in a noncompensable disability rating, as currently assigned. See 38 C.F.R. § 4.85(c). The Veteran next underwent VA examination in May 2015, which yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 70 70 LEFT 20 10 15 70 75 As calculated by the examiner, puretone threshold averages were 43 percent bilaterally. Additionally, the Veteran registered a speech recognition score of 96 percent for both ears. These results are properly rated under Table VI, such that the hearing impairment levels correspond to Level I for both ears. Intersecting Levels I and I under Table VII result in a noncompensable disability rating, as currently assigned. See 38 C.F.R. § 4.85(c). Next, an October 2017 VA treatment record shows the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 25 80 75 LEFT 30 25 25 80 85 As calculated by the Board, puretone threshold averages were 50 percent for the right ear and 53.75 for the left ear. 38 C.F.R. § 4.85(d). Maryland CNC speech recognition scores were not provided at that time. These results are properly rated under Table VIA, such that the hearing impairment levels correspond to Level III bilaterally. Intersecting Levels III and III under Table VII result in a noncompensable disability rating, as currently assigned. See 38 C.F.R. § 4.85(c). The Veteran underwent additional VA treatment in October 2018, which yielded the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 80 80 LEFT 35 30 30 85 90 As calculated by the Board, puretone threshold averages were 51.25 percent for the right ear and 58.75 for the left ear. 38 C.F.R. § 4.85(d). Maryland CNC speech recognition scores were not provided at that time. These results are properly rated under Table VIA, such that the hearing impairment levels correspond to Level III for the right ear and Level IV for the left ear. Intersecting Levels III and IV under Table VII result in a 10 percent disability rating. See 38 C.F.R. § 4.85(c). Most recently, a February 2020 VA treatment record contains the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 80 75 LEFT 30 30 35 80 90 As calculated by the Board, puretone threshold averages were 52.5 percent for the right ear and 58.75 for the left ear. 38 C.F.R. § 4.85(d). Maryland CNC speech recognition scores were not provided at that time. These results are properly rated under Table VIA, such that the hearing impairment levels correspond to Level III for the right ear and Level IV for the left ear. Intersecting Levels III and IV under Table VII result in a 10 percent disability rating. See 38 C.F.R. § 4.85(c). The Board has also reviewed the Veteran’s VA treatment records in conjunction with this appeal; however, this evidence does not contain additional audiological testing for deliberation. Consideration has also been afforded to the Veteran’s February 2020 testimony regarding the nature and severity of his bilateral hearing loss, to include related functional impairment and the need for hearing aids. In accordance with the above evidence, a compensable rating is not warranted for the Veteran’s bilateral hearing loss prior to October 17, 2018; however, a 10 percent rating is warranted thereafter, corresponding with the earliest test results warranting such a rating under the applicable diagnostic criteria. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appeal is thus granted to this limited extent. With respect to both periods on appeal, the Board has considered the Veteran’s testimony regarding the nature and severity of his bilateral hearing loss and related contention that higher ratings are warranted than those established herein. See, e.g., January 2016 Notice of Disagreement (NOD) (requesting a total 30 percent rating). However, he does not possess the requisite training and expertise to competently assess his symptoms against the applicable rating criteria. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, greater probative value is afforded to the medical evidence of record, which directly supports the Board’s determinations. Moreover, the assignment of disability ratings for hearing impairment is derived from the application of a mechanical formula. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Here, the formula yields a 10 percent rating for the Veteran’s disability after October 17, 2018. Notably, the record is silent for such a unique disability picture or additional symptomatology as to warrant higher ratings on this basis. See generally VA treatment records (noting bilateral hearing loss requiring the use of hearing aids). Thus, although sympathetic to the Veteran’s reports, the collective evidence supports the determinations herein. (Continued on next page) Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.